The Politics of War Powers with Sarah Burns | BRI Scholar Talks

0:00 you need congress to start working as a branch against the presidency which is good constitutionally it sounds like it’s bad but it’s good or uh you would need a president who willingly puts more shackles on his power or her power and forces congress to take some of the power that has been collected into the

0:20 executive branch [Applause] hi this is tony williams a senior fellow with the bill of rights institute and we want to welcome you to another episode of scholar talks today on this episode is our great privilege to introduce uh sarah burns who is going

0:41 to talk about her new book the politics of war powers the theory and history of presidential unilateralism so the guiding question for this conversation is is going to be how the president has really been presidents have been able to decide when the united states go to war

1:02 really in many many instances without congress deliberating or even declaring war and and secondly what effect has this had on the constitutional principles of separation of powers and checks and balances so those are the questions we’re going to really focus on and try to answer today

1:24 by way of introductions sarah burns is an associate professor of political science at rochester institute of technology and she teaches at the ashbrook center’s master’s program for teachers sarah thank you very much for joining me thanks for having me excellent well uh let’s jump right in my my first question is is

1:47 really on laying kind of the the theory and constitutionalism of this topic and so i i want to ask you what is the proper constitutional balance between the congress on one hand and the presidency on the other with regard to war powers and how are

2:07 they supposed to function yeah uh great question thanks it’s it really goes back to uh the way that james madison described it in the federalist papers when he said ambition is supposed to be counteracting ambition and what he means by this when he’s describing it in federalist 51 is that you need to have each branch have an interest in what’s going on in

2:29 their branch and ensure that they’re guarding their powers so you see that the founders did a very good job of distributing the war powers across both of the branches and what they were trying to do is really lock them into a conversation with each other that can get contentious you know can be a battle between the two of them because congress is supposed to say you

2:50 know i don’t really know if we need to use the military to solve this problem and the president is then supposed to say well this is the reason why you know i’m trying to convince you why it is we need the military and in that conversation you know he and perhaps eventually she is supposed to be convincing congress and supposed to be saying you know this is i’m making a case for war and congress is then supposed to say

3:12 that’s a good case and you know we’ll give you the the money and the troops that you need and if he doesn’t make a good case or congress is just not convinced and then you don’t have war right so that should be the real battle is or the real the balance is you have a battle between the branches if they don’t agree and consensus between the branches if

3:32 they do agree on the necessity of a military operation yeah i love that and that really supports the idea of checks and balances right and i i love the way you put it it’s a conversation right it’s deliberation right uh in in our system of self-government these political branches are supposed to to talk and and debate and converse about policy and and the

3:54 law and then public good and and going to war is obviously one of the most important things uh and jobs that it does uh with the greatest impact on on its citizens and so uh yeah that’s a really important dialogue to have yeah and it’s also we see in the two branches they have different qualities and different competencies right so congress is supposed to be slow

4:16 and deliberative and kind of plotting and the presidency conversely is supposed to be energetic and quick and you know kind of frenzied in movement and bringing those things together you get a nice balance and so the checks and balances are true but it’s also the different nature of the power in congress versus the nature of the power in the executive bringing them together into this

4:38 dialogue makes it much more likely that you’re going to have positive results positive policy good policy where you you know where you’re going with the military and you know what you’re going to do with it right which is a really good way i think of um deciding what to do in the realm of war right you don’t want to just say well go ahead um

4:58 you know we’ll see if we win this war and if we don’t you know what’s more blood and treasure right that’s not how we should be developing policy right well your book is just chock full of very very interesting example so so let’s start looking at some of those examples and looking at the 19th century okay you describe a few imbalances there

5:18 between the branches but by and large you argue that the constitutional balance of powers uh really does function properly uh from from the early republic up up through the spanish-american war so maybe we can just briefly talk about that period and and and why the powers were balanced

5:38 so well yeah it’s a it’s a really good question and it’s really important to to think of the us not as this isolated nation that wasn’t doing anything in the 19th century and then all of a sudden in the 20th century just exploded onto the international stage in the 19th century we’re fighting the british the spanish to a certain extent the french i mean we’re fighting the great empires we’re fighting the mexicans

6:00 we’re doing all sorts of things in terms of war besides the civil war and that’s really shaping the way that these branches were supposed to interact and they actually did right so we see that not only is it in theory that the pres that the you know branches work together this way we also see in practice they worked very very well where the president

6:21 you know took his case to congress explained to congress what it is that he wanted to do congress then thought about it right and in most cases made the right decision in the mexican-american war definitely congress should have been like what are you doing paul this is this is a terrible idea absolutely no we’re not giving you any money we’re not giving you any troops but i digress so president brings his

6:44 case to congress congress thinks about it talks about it you know says the president this is what we can give you and we’re off right then we have the war and the president continuously goes back to congress continues to make his case to congress congress continues to deliberate about the case for war and continues to support it or tries to

7:05 shift policy as needs be okay uh and so the the unilateral presidential exercise of war powers really seems to become more problematic uh during and after world war one with with woodrow wilson uh making claims to to spread democracy and going to war

7:26 uh to make the world safer democracy uh and and then after the war he tries to establish a new world order for uh with the league of nations to enforce the peace and kind of create this this lasting peace among all the nations of the world so so what is so problematic about uh world war one yeah it’s it’s a pivotal point obviously

7:49 it’s called the great war in britain it’s you know one of these moments in history where you actually see the world really dropped into horrible fighting that should be a moment where we say okay maybe as a human race we can rise above or get past this

8:09 this horrible way of interacting with each other that has been a part of human nature since the beginning of civilization right and so the problem with this idea and the problem with wilson’s understanding of this idea that we can make the world safe for democracy is that he thinks you can eradicate you can get rid of this part of human nature and by you know shaping the world in a

8:30 certain way and making everybody democratic we’ll suddenly live in this utopic world of democracies where we’re all just friendly and kind to each other and it’ll just be basically the us’s relationship with britain but writ large right like everyone will kind of interact that way and we’ll just have a little you know kerfuffles every now and then

8:50 and so this is just a fundamental denial of human nature right how it is that people interact with each other and the the desire to kind of pivot in this way and the the idea that you can eliminate human nature in this respect is just so hubristic right like this is just a

9:11 level of ambition that that needs to be checked right that needs to be brought back to earth brought back to reality that you know you can you can do a lot of things to try and stop wars from breaking out and that’s a really good idea and we should definitely make those steps but as horus said i think this is from horus you can chase nature out with a pitchfork but she

9:32 always comes back so that’s the really big problem with the wilsonian vision of the world is you you can’t get rid of human nature you can’t get rid of the war-like part of human beings you can only kind of try and contain it and keep it uh small as possible right and this really continues uh during another watershed moment with

9:53 fdr and and sort of the lead up to war and then the actual fight in world war ii and another moment for unilateralism by the executive right and and so how does fdr can contribute to presidents engaging in war without congressional authorization yeah it’s a great question and the problem with fdr is you know you can

10:14 never leave him right he’s just this pivotal figure in american history he’s this pivotal president he’s dynamic he’s this powerful speaker who just has a totally different vision for how the us should run what the us government should do and he’s given power or gets power at a time when there are not one but two

10:36 major crises right so first you have the great depression which is a once-in-a-lifetime economic crisis and then you have world war ii that in theory should have been a once in a lifetime war but you’re somewhat on the heels of world war one and so giving this incredibly impressive politician power at a time when there

10:57 are such an immense crises to meet you’re going to have him fill the role right expand dramatically his own powers in an effort to meet these crises and constitutionally that makes sense right you do actually want the presidency to expand at a moment of crisis uh perhaps not as much with an economic

11:18 crisis but definitely in a crisis as large as world war ii you want a powerful president but after that you want it to come back to earth he wanted to contract back down but fdr as i say in the book he kind of broke part of our democracy in order to save it and i think to me it’s debatable whether

11:39 that that was necessary right did he have to expand the presidency to the size that he did it’s like i said a point of debate but he did expand the presidency and he was to a certain extent given that leash by congress and afterwards we just see it’s kind of like the floodgates that opened or pandora’s box it opened to

12:00 just keep using different metaphors and so once that had happened i think it was really hard for congress to to reconstrain or to to put parameters back on presidential power after that point and it doesn’t right uh and so the cold war um becomes this this real ultimate turning

12:23 point uh as as you described in the book in which presidents go to war based upon authority from from the un uh from from the new nato treaty uh from their expanded understanding of executive power especially with the help of their lawyers which is an interesting thing uh rather than rather than deliberating

12:44 with congress uh and you know i talked about this with my students for years when i was a teacher and we just seem to engage in all of these wars during the cold war and yet never declared war right we we can rattle uh all of them off right uh but you know korea and vietnam probably stand out as the the most

13:05 significant wars that we engaged in during the cold war so so how what events were taken you know what’s taking place around the cold war to expand this unilateralism and then and then doesn’t the war powers resolution help restore things or or is it supposed to and it fails can can you explain that a little bit as

13:26 well yeah yeah great questions and this is um as you say a turning point because what we see with fdr is fdr taking power from congress right congress really trying hard to restrain fdr really trying to keep him out of or trying to keep the us out of the war and once we get to the the cold war once we get to truman and then and then johnson we see this is

13:48 congress giving away its power right this is congress is saying to the president you’ve figured this out right you you know what you’re doing i guess um we’re not going to to question you before you start the operation we’re not going to do a lot of oversight while the operations are continuing we’re just going to kind of grumble

14:10 about it and say you know we don’t really like what you’re doing in korea or we don’t really like you know how it’s going in vietnam but instead of really um putting their putting themselves into it actually really standing up to the president and saying you know we’re going to decide whether you’re doing a good job as 19th century congresses did

14:30 the 20th century or the cold war congress has just kind of stepped back and you know quietly said to each other like should we do something like no we definitely don’t want to do anything here and then you finally have it come to a head as you say in with the war powers resolution where it seems as if congress is finally saying all right you know nixon was the last straw we have to do something now we

14:52 clearly have this runaway president that uh schlesinger calls the imperial presidency and you know we’ve we’ve gotta we’ve gotta act right like the whole country is calling out for us to act and they really were so you’ve got this public pressure for congress to act and what they do is come up with the war powers resolution and the first part of the war powers resolution reads

15:14 essentially like a reading of a plain reading of the constitutional text so if you look at the first part of the war powers resolution it’s exactly what the founders would have suggested right so presidents can’t go to war unless they have a declaration an authorization for from congress or they’re responding to an attack

15:35 right every single founder would have said check mark checkmark checkmark that’s exactly what we were talking about that’s exactly what we wanted from the presidency so go ahead right and then this 1970s congress thinks to itself well you know there’s sometimes when presidents are going to do smaller scale operations

15:55 so why don’t we account for that so then they have this little door opening moment where they’re like well if presidents are going to do something um by themselves unilaterally we’re going to give them 60 to 90 days and you’re like no i’m sorry congress the entire point of you know your actions here in this war powers resolution

16:16 is to put the genie back in the bottle like you don’t want presidents doing things without your permission and they’re still able to respond to a sudden attack so just stop there right that’s where that’s where it should have ended uh but instead they have this permission slip essentially for the presidency where they say you’ve got 60 to 90 days so i tend to

16:36 refer to it as like the top gun version of um of wars right where if it’s just a few planes flying around presidents are allowed to do it without congressional sanction and congress just kind of says like okay do that and we don’t want to be bothered with it so the war powers resolution was supposed to be a constraint and actually acts as a permission slip

16:58 great fascinating so so then the cold war ends right but unilateralism doesn’t okay uh and so during this post-cold war period uh and then leading into the war on terror after 9 11 the presidents really just effectively

17:18 ignore congress uh in either in what are what are wars uh but then also you know increasingly they appeal to humanitarian missions or so-called humanitarian missions and i think about the wars that that i’ve experienced in my lifetime that that you discuss and so you know with the first gulf war

17:40 and in somalia uh kosovo and bosnia and then of course afghanistan iraq and the war on terror uh and so how does this unilateralism just continue to play out despite this war powers resolution yeah it’s a great question i think one of those moments in u.s history where

18:02 i i was looking at it and looking at it for the book and where the cold war and the imbalance there kind of felt understandable to me when you get to the 90s and this sort of like american exceptionalism you know end of history democratic peace theory writ large i kind of think to myself did none of you did none of you read anything from the

18:25 founders did none of you read like anything from the cycles of history and the fact that like you know the hubristic are brought down right it always ends badly for them so you don’t want to just go around the world doing whatever it is that you please because you think you’ve unquote won the cold war because first of all you know russia doesn’t agree right with that reading of the end of

18:46 the cold war and there’s going to be lots of places internationally that do not welcome your help as you put it right so when you go in with these humanitarian missions sometimes you’re not only not welcome as a as an actor but you’re also potentially doing more harm so in somalia for example

19:07 um many of the peacekeepers ended up causing the the civil strife there to continue or perpetuate because people were using uh food that was being provided by the u.n to pay their soldiers so that they could continue fighting and so you know these kinds of mistakes are i suppose understandable but this is one of those moments where if there was a balance between the the

19:28 branches you would see congress potentially saying to presidents you know is it really a good idea for us to go into somalia guns blazing is it really a good idea for us to you know insert ourselves into the situation in bosnia again guns blazing and having more deliberation more time to talk about these things

19:49 rather than just assuming you know everyone’s going to want u.s help everyone’s going to want the us military to tell them what to do it would have been a really good time to to recheck and and put ourselves you know where it is that we we should probably be in terms of the balance between the branches and in terms of how we use u.s power

20:10 right because what you really want is the usb a source for good positive change in the world and if you’re using us power kind of willy-nilly and different operations all over the place that’s probably not going to go very well right so you have this moment in the 90s where the u.s could be this source for positive good in the world and instead because they

20:31 you know insert themselves in some conflicts poorly don’t insert themselves in other conflicts like rwanda then they don’t look like a very good actor and on top of that congress this entire time isn’t saying to presidents no you have to come to us you have to ask us prior to doing these things and you have to tell us why you have to do them and why it’s beneficial for us interests

20:53 for international security and presidents just aren’t doing this they’re just deciding for themselves so you know it’s not even all of the us making these kinds of selective decisions it’s just presidents right essentially clinton making these selective decisions and clinton was so swept up in the idea of democratic peace theory and the idea that if we make the

21:14 world democratic then it’s going to be a more peaceful world that we see a sort of reiteration of the wilsonian problem where it’s like we’re so hubristic we’re so impressed with our own system of government that we’re imposing it on a whole bunch of other people and they do not like it they really um don’t see the us as a

21:35 source for positive change in the world in the 90s for the most part right so you know so my final question your book really provides compelling and and ample evidence for this this constitutional imbalance that that has been going on for you know um now uh over a century

21:58 uh over war powers uh and i i think i detect uh you know exasperation on both of our parts for this this real constitutional imbalance and and what it means for an american democracy what it means for for american power in the world and views of america from around the globe uh there’s just a lot of troubling uh

22:19 aspects of of this imbalance of separation powers and checks and balances so my question is what do you think the the remedy for restoring this balance uh with the separation of powers with checks and analysis but with constitutionalism what is that going to be and and can we get back to

22:41 that proper balance that madison and the founders envisioned yeah it’s a it’s a really good question and you’re right i am exasperated and i’m glad to have a fellow exasperated interlocutor to talk to because it is very frustrating when you see all the things that presidents have consistently done just to name a couple of recent examples

23:01 we see you know biden hitting a few militia groups in syria and we see trump uh assassinating a a member of the iranian government in when that member happened to be in in iraq and these are things that can spiral into if not world war iii some kind of great

23:23 power war because if iran and the u.s went to blows russia would get involved i suspect china would also get involved or maybe sit it out and see what happens but all the same it would be a major crisis that you don’t want to see and you don’t want in the hands of one individual you know just deciding how how the world

23:44 international security is going to going to shake out so you know i think to try and get back to some kind of balance there’s a few things so i i’ve mentioned several times that i don’t think the problem really is the presidency or presidents themselves it’s very understandable from the constitutional perspective that

24:05 presidents are going to be ambitious right the kind of person who decides to run a country is naturally going to be the kind of person who wants to expand his or her power and wants to be viewed as a great president right and so that’s perfectly understandable what we need then is for congress to to really reassert itself and really

24:25 bring the president back into balance with the with the congress and you know how do you do this exactly for one thing i guess um a possible way forward would be a change in the leadership in congress so if you look at members who are currently in power

24:45 so people like mitch mcconnell and nancy pelosi you don’t see them trying to find ways to reassert congress so much as you see them as trying to find ways to beat out the other party right so what you would need is people like mitch mcconnell and nancy pelosi somehow seeing that their interest is to work together against the

25:07 presidency right and that’s not something that we’re seeing now but that’s the kind of thing where if the branch had a loyalty to itself and the branch really started working together um to counter the ambition of the presidency that could restore a balance i would think and so how would you get them to do that so the

25:27 the hard answer to that is that it seems like you have to convince voters to vote for that and so you have to convince voters that mitch mcconnell should want to work with nancy pelosi and vice versa rather than nancy pelosi in this instance working with biden and biden’s administration or mitch mcconnell working previously with the trump administration

25:49 unfortunately voters are currently convinced that they want republicans to work together against the democrats and vice versa so you know i think one would hope and i i just had to say on a hopeful term one would hope that people will start to see that the shirts and skins or like the jersey that you wear is not

26:10 the way to organize politics it should be that we have broad goals that we agree on are good or positive for the country instead of i just want to beat the other guy right i don’t care what it is that he’s he’s voting for i just want him to lose and like i feel like the fever has to break like i feel like we’re at a moment

26:31 in us history where you know we are kind of frenzied we are kind of like i don’t like the the other people on the other side and we’ve had moments where we’ve gotten over that say for example post 911 there was much more of a sense of camaraderie or a collective sense of the american nation and interest so maybe we can get back to that

26:54 maybe covid because of the fact that we are all in this together could be a moment like that where we come together and realize we have to work together we can’t work against the other team the other thing i would say is you have to have perhaps the greatest of statesmen in the in the oval office because they would

27:14 willingly give up a great deal of unilateral power and willingly force congress by ushering through legislation willingly force congress to um bring them back into balance right so to sort of to summarize you need congress to start working as a branch against the presidency which is good

27:36 constitutionally it sounds like it’s bad but it’s good or you would need a president who willingly puts more shackles on his power or her power and forces congress to take some of the power that has been collected into the executive branch all right sarah burns thank you for

27:58 joining us the book is the politics of war powers the theory and history of presidential unilateralism really a remarkable book one of those books that you know provides answers to some of those questions you’ve just had in your mind for years and years and years about the american political system

28:18 and constitutional order and now they’re answered so uh thank you very much for uh your remarkable book and and for coming to speak with me today thanks so much tony it was really enjoyable and i you know hope we have future conversations maybe at some point in person yes yeah that would be great thank you thank you for joining us uh please be

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